Tuesday, November 1, 2011

The Carter Case and Assisted Suicide: A Recipe for Elder Abuse and a Threat to Individual Rights

For shorter print versions of this article, click here and here.
For talking points, click here.

Will Johnston, MD
Margaret Dore, JD
Alex Schadenberg
November 1, 2011
"Those who believe that legal
assisted suicide . . . will assure their
autonomy and choice are naive."

William Reichel, MD
Montreal Gazette,
May 30, 2010[1]

A.  Introduction

Carter vs. Attorney General of Canada brings a constitutional challenge to Canada's laws prohibiting assisted suicide and euthanasia.[2]  Carter also seeks to 
legalize these practices as a medical treatment.[3]  Last year, a bill in Parliament seeking a similar result was overwhelmingly defeated.[4] 

This article's focus is physician-assisted suicide.

Legalizing this practice would be a recipe for elder abuse.  Legalization would also empower the Canadian health care system to the detriment of individual patient rights.  There would be other problems.

B.  Parliament Rejected Assisted Suicide

On April 21, 2010, Parliament defeated Bill C-384, which would have legalized physician-assisted suicide and euthanasia in Canada.[5]  The vote was 228 to 59.[6]
C.  The Carter Case

Carter seeks to allow a medical practitioner or a person "acting under the general supervision of a medical practitioner" to assist a patient's suicide.[7]  Carter's Amended Notice of Civil Claim states:

"'physician-assisted suicide' means an assisted suicide where assistance to obtain or administer medication or other treatment that intentionally brings about the patient's own death is provided by a medical practitioner . . . or by a person acting under the general supervision of a medical practitioner . . ."[8]

In the context of traditional medical treatment, "a person acting under the general supervision of a medical practitioner" would include a family member.[9]  An example would be an adult child who administers medication to a parent under the general supervision of a doctor who is not present.[10]  Typically, this would be in a home setting.[11]

In Carter, the Amended Notice of Civil Claim argues that laws prohibiting physician-assisted suicide are unconstitutional for patients who are  "grievously and irremediably ill."[12]  The term "grievously and irremediably ill" is not defined.[13]  The Amended Notice of Civil Claim does, however, give these examples of qualifying diseases/conditions:  "cancer, chronic renal failure and/or cardiac failure, and degenerative neurological diseases such as Huntington's disease and multiple sclerosis."[14]  The phrase, "grievously and irremediably ill" would also appear to apply to chronic conditions such as diabetes and HIV/AIDS.[15]  People who have these diseases/conditions can have years and sometimes decades to live.[16]

The Amended Notice of Civil Claim does not seek to require that the death be witnessed.[17]  The medical practitioner is not required to be present at the patient's death.[18] 

D.  A Comparison to the United States

In the United States, there are two states where physician-assisted suicide is legal:  Oregon and Washington.[19]  In each state, assisted suicide laws were passed via highly financed sound-bite ballot initiative campaigns.[20]  A ballot initiative is similar to a referendum in Canada.[21]  In the United States, no assisted suicide law has made it through the scrutiny of a legislature despite more than 100 attempts.[22]

In 2010, there was a proposed bill to legalize assisted suicide in the state of Montana.[23]  During a hearing on the bill, Senator Jeff Essmann made this observation:

“All the protections [in Oregon’s law] end after the prescription is written.  [The proponents] admitted that the provisions in the Oregon law would permit one person to be alone in that room with the patient.  And in that situation, there is no guarantee that that medication is self-administered."

E.  A Recipe for Elder Abuse

Elder abuse includes physical, psychological and financial abuse.[25]  Financial abuse is the most commonly reported type.[26]  Elder abuse is, however, largely unreported and can be very difficult to detect.[27] This is due in part to the reluctance of victims to report.  The Government of Canada website states:  "Older adults may feel ashamed or embarrassed to tell anyone that they are being abused by someone they trust."[28]

Elders’ vulnerabilities and relative wealth have lead to murder with the perpetrators often being family members.  An example is Melissa Friedrich, the “Internet Black Widow.”[29]  She killed her first husband and is accused of poisoning her second husband and another elderly man in order to get their money.[30]

If assisted suicide were to be legalized via Carter, new paths of abuse would be created against the elderly.  The most obvious path would be due to Carter's lack of required witnesses at the death.  Without disinterested witnesses, an opportunity is created for a family member, or someone else who will benefit from the patient's death, to administer the medication to the patient without his consent.  Even if he struggled, who could know?

Consider also this comment from Nancy Elliott, a former member of the New Hampshire House of Representatives:

"Assisted suicide laws empower heirs and others to pressure and abuse older people to cut short their lives.  This is especially an issue when the older person has money.  There is NO assisted suicide law that you can write to correct this huge problem."[31]

Preventing elder abuse is official Government of Canada policy.[32]

F.  Empowering the Healthcare System

In Oregon, where assisted suicide has been legal since 1997, people desiring treatment under the Oregon Health Plan have been offered assisted suicide instead.[33]  The most well known cases involve Barbara Wagner and Randy Stroup.[34]  Each wanted treatment.[35]  The Plan offered them assisted suicide instead.[36]

Neither Wagner nor Stroup saw this scenario as a celebration of their individual rights.[37]  Wagner said: “I'm not ready to die.”[38]  Stroup said: “This is my life they’re playing with.”[39]

Wagner and Stroup were steered to suicide.  Moreover, it was the Oregon Health Plan, a government entity, doing the steering.  If assisted suicide were to be legalized in Canada, the Canadian health care system would be similarly empowered to steer patients to suicide.

With legal assisted suicide, the healthcare system, doctors and the government would be empowered, not individual patients.

G.  Legal Assisted Suicide Encourages People to Throw Away Their Lives

In Oregon and Washington, assisted suicide laws apply to "terminal" patients, defined as having no more than six months to live.[40]  Such persons are not necessarily dying.  Prognoses can be wrong.[41]  Moreover, treatment can lead to recovery.  Oregon resident Jeanette Hall, who was told that she had six months to a year to live, states: 

"I wanted to do what our [assisted suicide] law allowed, and I wanted my doctor to help me.  Instead, he encouraged me not to give up, and ultimately I decided to fight my disease. . . .  It is now 11 years later.  If my doctor had believed in assisted suicide, I would be dead."[42]

This year in New Hampshire doctors being wrong was a reason for the defeat of a proposed assisted suicide bill.  The majority committee report for the New Hampshire House of Representatives states:

"[T]his bill would legalize state-sanctioned suicide for people with terminal illnesses and that this is an area where government does not belong.  People with terminal illnesses who may consider suicide do not need encouragement from the government. . . .  The committee also recognizes that doctors’ diagnoses and predictions may be incorrect; numerous cases exist where people have lived far beyond their doctor’s predictions, some of them having been cured from their terminal disease.  For these reasons, the committee strongly believes that this bill represents bad policy and practice and [recommends that the bill be defeated]."[43]

The vote to defeat the bill was 234 to 99.[44]

H.  Suicide Contagion

Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[45]  Just three years prior, Oregon legalized physician-assisted suicide.[46]  This increase in other suicides is consistent with a suicide contagion.[47]  In other words, one type of suicide encouraged other suicides. 
In Canada, preventing suicide is a significant public health issue.[48]

I.  Doctor and Heir Protection

At their most basic level, physician-assisted suicide laws protect doctors and  other assisting persons.  In Oregon and Washington, this protection is accomplished via statutory immunity provisions that prevent criminal and civil liability from being imposed against a person who assists a "qualified patient" to die.[49]  In Carter, the Amended Notice of Civil Claim appears to be seeking similar immunity by arguing that "persons assisting" have a constitutional right to do the assisting.  The Amended Notice of Civil Claim states:

"The right to liberty of persons who assist or support a grievously and irremediably ill person to obtain physician-assisted dying services [physician-assisted suicide] must necessarily be protected in order to give meaning to the s. 7 life, liberty and security of the person rights of grievously and irremediably ill persons."[50]

With doctors and other assisting persons protected with a constitutional right, a patient subjected to their actions would be left with little or no recourse.

In Montana, Senator Essmann made a similar observation:  "You know, the sponsor [of the assisted-suicide bill] has talked about our obligation to look after the people in the medical profession.  But, I am way more worried about our obligation to protect the powerless."[51]

J.  Conclusion

Carter's claim that legalization of assisted suicide will enhance individual rights is untrue.  Legalizing assisted suicide would instead be a recipe for elder abuse.  Heirs and other predators would be empowered at the expense of the individual rights of older Canadians to safety and security.  Legalization would also empower the health care system, doctors and the government to steer patients to suicide.  Some individuals with many quality years left would be encouraged to kill themselves.  In Oregon, other suicides have increased with legalization of assisted suicide.  Canada does not need the "Oregon experience."

* * *

Will Johnston has practised family medicine for 30 years in Vancouver BC.  His practice includes the care of older people.  He also performs legal competency evaluations in which elder abuse is often an issue.  Dr. Johnston is Chair of the Euthanasia Prevention Coalition, BC.  (www.epcbc.ca).

Alex Schadenberg is Executive Director of the Euthanasia Prevention Coalition and Chair of the Euthanasia Prevention Coalition International, based in London, Ontario.  (www.epcc.ca) Established in 1999, these organizations seek to build a well-informed, broadly based membership to establish an effective social barrier to euthanasia and assisted suicide. Mr. Schadenberg and the Euthanasia Prevention Coalition were instrumental in defeating Bill C-384, which had sought to legalize euthanasia and assisted suicide in Canada.  Mr. Schadenberg is a frequent speaker and is often quoted in the media. To visit his blog, click here    

Margaret Dore is an elder-law lawyer in Washington State where physician-assisted suicide is legal.  She is a former Law Clerk to the Chief Justice of the Supreme Court of the State of Washington.  She also clerked for the Court of Appeals of the State of Washington.  She worked for a year for the United States Department of Justice.  She has published articles on elder-law topics and assisted suicide.  She has testified against assisted suicide/euthanasia in the US and Canada.  She is President of Choice is an Illusion, a nonprofit corporation.  (www.choiceillusion.org

* * *

[1]  William Reichel, MD, Letter to the Editor, "Euthanasia doesn't assure choice," The Montreal Gazette, May 30, 2010.
[2]  Carter v. Attorney General of Canada, Supreme Court of British Columbia, No. S112688, Amended Notice of Civil Claim, filed August 15, 2011: p.3, paragraph 7 (defining "physician-assisted suicide"); p. 3, paragraph 8 (defining euthanasia as "consensual physician-assisted death");  p. 3, paragraph 9 (defining both practices as "physician-assisted dying"); and pp 19 to 22 (arguing against restrictions on "physician-assisted dying" as a violation of various constitutional rights).
[3]  See e.g., Amended Notice of Civil Claim at note 2, p.3, paragraphs 7 and 8 (describing assisted suicide and euthanasia as being administered by a "medication or other treatment" that intentionally brings about a patient's death).
[4]  See "How'd They Vote?: A Resource for Political Accountability, Bill C-384, available at http://howdtheyvote.ca/bill.php?id=2053  (Last visited October 24, 2011).
[5]  Id.
[6]  Id.
[7]  Amended Notice of Civil Claim at note 2, p.3, paragraph 7 (defining physician-assisted suicide).
[8]  Id.
[9]  Under generally accepted medical practice in British Columbia, "a person acting under the general supervision of a medical practitioner" could include a family member administering a medication or treatment without the medical practitioner or anyone else being present.  Typically, this would be in a home setting.  [Will Johnston, MD]
[10]  Id.
[11]  Id.
[12]  Amended Notice of Civil Claim at note 2, pp 19 to 22 (arguing against restrictions on "physician-assisted dying," a term that includes physician-assisted suicide and euthanasia, as a violation of the constitutional rights of patients who are "grievously and irremediably ill").  See also Amended Notice of Civil Claim, p. 3, paragraph 9 ("For purposes of this claim, 'physician-assisted suicide' and 'consensual physician-assisted death' will be collectively defined as 'physician-assisted dying'").
[13]  See Amended Notice of Civil Claim at note 2, in its entirety (the term, "grievously and irremediably ill," is not defined). 
[14]  Amended Notice of Civil Claim, p.13, paragraph 57.
[15]  "Grievously" means "causing grief, pain, or anguish." 
http://www.thefreedictionary.com/grievously  "Irremediably" means "Impossible to remedy, correct, or repair; incurable or irreparable."  http://www.thefreedictionary.com/irremediably  "Ill" means inter alia "not healthy" or "not normal."  http://www.thefreedictionary.com/ill  Chronic conditions/diseases such as diabetes and HIV/AIDS can fit within all of these definitions.  Diabetes and HIV/AIDS can cause "grief, pain or anguish" to a person; they can be "incurable or irreparable"; and they are "not healthy" or "not normal" as opposed to a normal "healthy" person.  [Will Johnston, MD, professional experience]
[16]  A "grievously and irremediably ill patient" as described in the Amended Notice of Civil Claim could live for years or even decades with appropriate medical care (and sometimes without appropriate medical care).  [Will Johnston, MD, professional experience]
[17]  See Amended Notice of Civil Claim at note 2, p.3, paragraph 7 (allowing either the "medical practitioner" or a person "acting under the general supervision of a medical practitioner" to administer the "medication or other treatment that intentionally brings about the patient's own death").  See also the Amended Notice of Civil Claim 
in its entirety, which does not seek to require witnesses to a death via physician-assisted suicide.
[18]  See Amended Notice at note 2, in its entirety, which does not seek to require the medical practioner's presence.  See also suicide") 
[19]  The Oregon physician-assisted suicide law is codified as Oregon Revised Statute 124.800 to 127.897, available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx (Last visited October 24, 2011).  The Washington physician-assisted suicide law is codified as Revised Code of Washington, Chapter 70.245, available at http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245 (Last visited October 24, 2011).  In a third state, Montana, there is a court decision that gives doctors a potential defense to criminal prosecution, but which does not legalize assisted suicide by giving doctors or anyone else immunity from civil and criminal liability.  See e.g. Greg Jackson, Esq. & Matt Bowman, Esq., "Analysis of Implications of the Baxter Case on Potential Criminal Liability," April 2010, available at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html  (Last visited October 24, 2011).
[20]  Oregon's physician-assisted suicide act was enacted via
Ballot Measure 16.  Washington's act was enacted via Initiative 1000.  In Washington, proponents spent $5.5 million vs. $1.7 million spent by opponents.  See Washington State Public Disclosure Commission Report ("Yes on I 1000" spent $4,910,240.84 and Compassion & Choices WA Initiative PAC spent $627,625.00, for a total spent of $5,537,865.84 spent by proponents.  The Coalition Against Assisted Suicide spent $1,689,341.74 and No Assisted Suicide! PAC spent $5,910.00 for a total of $1,695,251.74 spent by opponents).  Report available via search for 2008 initiatives at http://www.pdc.wa.gov/MvcQuerySystem/Committee/initiative_committees   .pdf 
[21]  Both an initiative and a referendum are a process of referring a political question to the general electorate. Voters are asked to answer yes or no to a written question.  See e.g., http://canadaonline.about.com/od/elections/g/referendum.htm
[22]  Patients Rights Council, "Attempts to Legalize Euthanasia/Assisted Suicide in the United States," 2011 ("Between January 1994 and March 2011, there were 122 legislative proposals in 25 states.  All bills that are not currently pending were either defeated, tabled for the session, withdrawn by sponsors, or languished with no action taken").
[23The bill, SB 167, failed.  For a legal analysis of that bill, go here:  http://www.choiceillusionmontana.org/p/sb-167.html (Last viewed October 24, 2011).
[24]  Montana Senate Judiciary Committee Hearing, February 10, 2011, Transcript, click here and scroll down to p 15
[25]  Government of Canada, "Elder Abuse, It's Time to Face the Reality,"  scroll down to:  "What is Elder Abuse?") available at http://www.seniors.gc.ca/c.4nt.2nt@.jsp?lang=eng&geo=110&cid=154#a 
[26]  Id. See also CBC News, "Abusers of elderly are often family: police," November 19, 2008 ("About 75 to 80 per cent of elder abuse involve a financial crime . . ."). 
[27]  See CBC News at note 26 ("The fact that the suspect in the abuse is often a family member makes it hard for victims to come forward and may lead them to tolerate quite a lot of abuse.  'They really don't want to talk about, or really acknowledge out loud that their son or daughter, grand-daughter, grandson, might actually do this to them, might treat them this way'. . ."). 
[28]  Government of Canada at note 25.
[29]  See "Timeline: The Life of Melissa Friedrich," The Fifth Estate, at http://www.cbc.ca/fifth/2008-2009/black_widow/timeline.html; John Leyden, "Internet black widow stalked pensioners on the net," The Register, 13 January 2005, available at http://www.theregister.co.uk/2005/01/13/internet_black_widow/print.html  See also R.L. McNeely, Ph.D., J.D. and Philip W.Cook, B.S., "Notes on Newspaper Accounts of Male Elder Abuse," Journal of Elder Abuse and Neglect," Vol. 19 (1/2), 2007:99-108, available at
http://www.mediaradar.org/docs/McNeely_Cook-Notes-On-Newspaper-Accounts-Of-Male-Elder-Abuse.pdf (Friedrich discussed therein).
[30]  Id.  Do not have more recent information [Author Margaret Dore].
[31]  Representative Nancy Elliott, Letter to the Editor, "Heirs will abuse older people," The Advocate: The official publication of the Idaho State Bar, September 2010.
[32]  See e.g., Government of Canada website, at note 25.
[33]  See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008; "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008; and Ken Stevens, MD, Letter to Editor, "Oregon mistake costs lives," The Advocate, the official publication of the Idaho State Bar, September 2011, to view, scroll down to bottom of second page here: http://www.margaretdore.com/info/September_Letters.pdf 
[34]  Id.
[35]  Id.
[36]  Id.
[37]  Id.
[38]  KATU TV at note 33.
[39]  ABC News at note 33.
[40]  See Oregon Revised Statute 127.800 s.1.01(12) and Revised Code of Washington 70.245.010(12), both of which define a "terminal disease" as "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months." Available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx (Last visited October 24 2011) and http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245.010 (Last visited October 24, 2011).  
[41]  Per author Will Johnston, MD.  See also Nina Shapiro, “Terminal Uncertainty: Washington’s new 'Death with Dignity' law allows doctors to help people commit suicide - once they’ve determined that the patient has only six months to live. But what if they’re wrong?," The Seattle Weekly, January 14, 2009. 
[42]  Jeanette Hall, Letter to the Editor, "She pushed for legal right to die, and - thankfully - was rebuffed," The Boston Globe, October 4, 2011.  (Last viewed October 24, 2011).  (Author Margaret Dore has confirmed Ms. Hall's story with her personally and also confirmed her story with her doctor, Kenneth Stevens, MD).
[43]  House Journal, Vol. 33, No. 28 (scroll down to HB 513).
[44]  Docket for HB 513, available here:  http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=297&sy=2011&sortoption=&txtsessionyear=2011&txtbillnumber=hb513&q=1                                                             [45]  See "Suicides in Oregon:  Trends and Risk Factors," Oregon Department of Human Services, Public Health Division, September 2010, page 6, ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report"), available at http://epcdocuments.files.wordpress.com/2011/10/or_suicide_report_001.pdf  See also Oregon Health Authority, News Release, "Rising suicide rate in Oregon reaches higher than national average," September 9, 2010, ("suicide rates have been increasing significantly since 2000") available at http://www.oregon.gov/DHS/news/2010news/2010-0909a.pdf
[46]  See 2010 Annual Report, Oregon's Death with Dignity Act,  (stating that Oregon's assisted suicide law was "enacted in late 1997").
[47]  Compare Dr. Madelyn Gould, "Suicide Contagion," Suicide Prevention and Intervention:  Summary of a Workshop, 2001, available at http://www.nap.edu/openbook.php?record_id=10226&page=8   See also Kelly Egan, "The contagion effect in suicide," The Ottawa Citizen, October 20, 2011, available at http://www.canada.com/news/Kelly+Egan+contagion+effect+suicide/5583321/story.html
[48]  See e.g., Report to the Parliamentary Committee on Palliative and Compassionate Care, Submission from the Canadian Association for Suicide Prevention, available at http://www.suicideprevention.ca/lobbying-for-a-national-strategy/suicide-a-national-tragedy/
[49]  See Oregon Revised Statute 127.885 s.3.14 ("Except as provided in ORS 127.890: (1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with [this act].  This includes being present when a qualified patient takes the prescribed medication to end his or her life . . .").  See also Revised Code of Washington, 70.245.190 (containing a similar immunity provision).
[50]  Amended Notice of Civil Claim, note 2, page 20, paragraph 14.
[51]  Montana Senate Judiciary Committee Hearing, note 23, page 14, lines 18 to 22, also available here:  http://www.margaretdore.com/pdf/senator_essmann_sb_167_001.pdf